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May 24 — On a 403-12 vote, the House approved legislation May 24 that would give the Environmental
Protection Agency more authority to evaluate and control the nation's industrial chemicals.

The Senate is expected to quickly take up—and easily pass—the bill, the Frank R. Lautenberg
Chemical Safety for the 21st Century Act (H.R. 2576). It may reach the Senate floor
May 25 or 26 under unanimous consent, a procedure under which the measure is deemed
approved unless a single senator objects.

The White House
supports the legislation, which would give the EPA more authority to obtain toxicity, exposure
and other information about chemicals, eliminate some of the Toxic Substances Control
Act's requirements that make it hard for the EPA to regulate chemicals in commerce,
and require the agency to assess the risks of the chemicals of greatest concern that
are in commerce. In its current form, the law has no such mandate.

Bipartisan House Support

Rep. John Shimkus (R-Ill.), who spearheaded the House effort that led to the bill's
adoption, described H.R. 2576 as “sweeping legislation,” “the culmination of a multiyear,
multi-Congress effort,” and “the first consequential update of the Toxic Substances
Control Act, or TSCA, in 40 years.”

“The end result of our work is a vast improvement over public law,” said Shimkus,
chairman of the House Energy and Commerce Subcommittee on Environment and the Economy.

During the nearly four decades since TSCA became law, said Rep. Rob Woodall (R-Ga.),
“science has changed, technology has changed, consumer demands have changed and yet
the way that we regulate these chemicals has not.”

Rep. Frank Pallone (D-N.J.), ranking member of the House Committee on Energy and Commerce,
supported the bill saying “reforming this law is about preventing injuries and saving
lives. It's about protecting vulnerable populations.”

Had TSCA worked effectively, “we would not have Bisphenol-A in baby bottles or toxic
flame retardants in our children's pajamas and in our living room couches and exposure
to asbestos decades ago,” Pallone said.

He referred to the 1991 decision of the U.S. Court of Appeals for the Fifth Circuit,
Corrosion Proof Fittings v. EPA, which overturned the agency's bid to ban asbestos.

“The court overturned it because of serious limitations on EPA's authority. That court
decision came down 25 years ago. Imagine the lives that could have been saved and
the injuries that could have been prevented if that ban had stood,”
Pallone said.

Tonko Weighing Pros and Cons, Voted Against

Rep. Paul D. Tonko (D-N.Y.), who opposed the bill, acknowledged it would improve some
aspects of managing chemicals in the U.S.

“EPA gains new authorities and resources. The regulatory bar to testing is lowered,
allowing EPA to acquire more information about chemicals. And, the ‘least burdensome'
standard that essentially has prevented EPA from regulating chemicals even when there
was overwhelming evidence of harm has been removed,” Tonko said.

“One of our caucus’
top priorities—expediting the review of persistent, bioaccumulative, and toxic substances
(PBTs) was largely retained. And the bill requires EPA to consider the most vulnerable
populations,” Tonko said.

“But for every positive step to protect public health and the environment there are
numerous steps back that undermine those goals,” he said.

Tonko opposed the bill because of provisions that would prevent states from regulating
chemicals even though the EPA has not decided whether it would regulate them. That
period, during which a chemical is unregulated by either states or the EPA, is called
the “preemption pause.”

“Let us call the pause exactly what it is—unnecessary and precedent setting. It may
be decades before we see the health benefits of this bill, but I fear it is only a
matter of time before more and more bills come to the floor that prevent state regulation
before a final federal agency action. It is a terrible policy, and we should not encourage
it. It opens the door to unwelcome and dangerous precedent,”
Tonko said.

“This body has never passed a law that denied states the ability to act before there
is a federal standard in place,” Johnson said.

“We will create an almost three-year limbo period where a chemical under review is
essentially unregulated by either state or federal laws. Meanwhile the public is subjected
to potentially dangerous chemicals. This is unheard of in our existing consumer protection
legal standards and will be to the detriment of the American public,” Johnson said.

Pallone said H.R. 2576 was not the bill Democrats would have written.

The legislation would, however, make critical improvements to current law, he said.

“I'm happy to support this bill to move forward with more protection for public health,
for the environment, for vulnerable populations and for vulnerable communities,” Pallone
said. “While this is a compromised bill, it is a long overdue step forward in protecting
families and communities from toxic chemicals.”

Senators Predict Easy Passage

On the other side of Capitol Hill, Senate Republican leaders said they were confident
of quick passage even as they steered clear of discussing strategy, including whether
they had enough support to pursue passage under unanimous consent.

“I think we could have some news on that” floor strategy shortly, he said.

Sen. Charles Schumer
(D-N.Y.), a member of the Senate Democratic leadership, told Bloomberg BNA May 24:
“I think it’s likely to pass and become law.”

Schumer said he has reservations about the way the bill would preempt certain state
regulation of chemicals but is resigned to its passage.

Sen. Dick Durbin (D-Ill.), the Democratic whip, said Democrats discussed the prospect
of quick Senate approval at the Senate policy lunch earlier in the day.

“It’s moving,”
Durbin told reporters. “There were good comments today in the
[Democrats’] lunch and I think there’s a very good chance we can bring that forward,”
he said.

Key Test: Implementation

Shimkus said the real test of the legislation will be the EPA's implementation and
finding out whether the law will do what legislators have said it will.

“We needed a new TSCA and we’re getting one,” said EPA Administrator Gina McCarthy
who spoke with Bloomberg BNA May 24. “It will be earth changing for EPA. We’re going
to be a player for first time in decades on toxics. It’s going to be a risk-based
standard for the first time. It’s quite remarkable.”

“I keep my fingers crossed,” McCarthy said as she spoke with Bloomberg BNA before
the House vote. “I’m excited. That’s going to give us a lot more ability to look at
what is in existing products.”

Looking Ahead: New Language to Block Rules?

One Republican highlighted a provision in the bill that may offer a means to block
the EPA's ability to regulate chemicals.

Rep. Marsha Blackburn
(R-Tenn.) said she understood H.R. 2576 adds a new provision to Section 9 of TSCA
that would limit the EPA's ability to promulgate a rule that would restrict or ban
a chemical if the agency already manages the risks of that chemical through a different
statute. The provision also would apply, she said, if another agency already regulates
that chemical in a way that sufficiently protects against its risks.

That provision, she said, could force the agency to explain why it would need any
further regulation of methylene chloride or trichloroethylene, Blackburn said.

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